Evidence in Context

393 Pages·2012·2.485 MB·English

by  Jonathan Doak, Claire McGourlay

Evidence in Context
THIRD EDITION
Evidence in Context explains the key concepts of evidence law in England and Wales clearly and concisely,
set against the backdrop of the broader social and theoretical contexts. It informs students of the
major debates within the fi eld, providing an explanation as to how and why the law has developed
as it has.
This third edition has been expanded to cover the fi eld of civil evidence alongside its tradi-
tional criminal focus. It has also been thoroughly revised and updated to take into account recent
developments in the law and the considerable amount of case law that has emerged since publica-
tion of the previous edition. This edition includes a new chapter structure, with new chapters on
the adversarial trial and suspect evidence.
Updated features include:
● s elf test questions and advice on further reading at the end of each chapter;
● k ey learning points which summarise the chapter as well as highlighting the most important
issues;
● n ew and updated chapters on topics such as adversarial trial, witnesses and suspect evidence;
● a new companion website, offering news and updates, Powerpoint slides of the diagrams in the
book and a fully customisable MCQ test bank for lecturers, at www.routledge.com/cw/doak.
Addressing the evolving case law on subjects such as hearsay and bad character which were over-
hauled in the Criminal Justice Act 2003, this book is an essential purchase for anyone studying
evidence law.
Jonathan Doak is Professor of Law at Durham University. He has published widely in the fi elds of
criminal evidence, victimology, and restorative justice.
Dr Claire McGourlay is a Senior Lecturer in Law and Faculty Director of Undergraduate Student
Affairs at the University of Sheffi eld where she teaches Criminal Evidence, Criminal Process and
Criminal Law. She also runs the School of law Innocence Project and Legal Advice Clinic and has
won awards for her contribution to student employability and inquiry based learning and a Senate
Award for Excellence in Learning and Teaching.

Evidence in Context
Third Edition
Jonathan Doak and Claire McGourlay
Third edition published 2012
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2012 Jonathan Doak and Claire McGourlay
The right of Jonathan Doak and Claire McGourlay to be identifi ed as authors of
this work has been asserted by them in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised
in any form or by any electronic, mechanical, or other means, now known or
hereafter invented, including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or registered
trademarks, and are used only for identifi cation and explanation without intent to
infringe.

Previous edition published by Law Matters Publishing First edition 2005
Previous edition published by Routledge-Cavendish Second edition 2008

British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data
Doak, Jonathan.
Evidence in context / Jonathan Doak, Claire McGourlay.—3rd ed.
Rev. ed. of: Criminal evidence in context. 2nd ed. c2009.
ISBN 978-0-415-69643-2 — ISBN 978-0-415-66842-2 — ISBN 978-0-203-12074-3
1. Evidence, Criminal — Great Britain. I. McGourlay, Claire. II. Doak,
Jonathan. Criminal evidence in context III. Title.
KD8371.D63 2012
345.42’06—dc23
2011043808
ISBN: 978–0–415–69643–2 (hbk)
ISBN: 978–0–415–66842–2 (pbk)
ISBN: 978–0–203–12074–3 (ebk)
Typeset in Joanna
by Refi neCatch Limited, Bungay, Suffolk
Contents
Preface ix
List of Figures and Tables xi
Table of Cases xiii
Table of International Instruments, Statutes and Legislation xxv
1 Introduction: Basic Concepts 1
1.1 Introduction 2
1.2 Facts 3
1.3 The concept of relevance 4
1.4 Forms of evidence 6
1.5 The changing nature of evidence law 9
1.6 Key learning points 12
1.7 Suggested further reading 12
2 The Adversarial Trial 13
2.1 The course of the adversarial trial 14
2.2 What makes the trial system ‘adversarial’? 19
2.3 The rationale for the adversarial trial 27
2.4 An alternative: the inquisitorial approach 29
2.5 Caveat: the adversarial–inquisitorial spectrum 34
2.6 Key learning points 36
2.7 Practice questions 36
2.8 Suggested further reading 36
3 The Burden and Standard of Proof 37
3.1 The legal and evidential burden: criminal trials 38
3.2 Criminal trials: tarnishing the thread – exceptions to Woolmington 40
3.3 The impact of the Human Rights Act 1998 48
3.4 Restoring the fundamental nature of the ‘golden thread’? 60
3.5 The burden of proof in civil cases 62
3.6 The standard of proof 62
3.7 Key learning points 65
3.8 Practice questions 65
3.9 Suggested further reading 66
4 Witnesses I: Competency and Compellability 67
4.1 The oath 68
4.2 Child witnesses 68
4.3 Witnesses with cognitive and learning disabilities 70
4.4 The compellability of witnesses 73
4.5 Key learning points 79
vi | CONTENTS
4.6 Practice questions 79
4.7 Suggested further reading 80
5 Witnesses II: Vulnerable Witnesses 81
5.1 The experiences of vulnerable witnesses 82
5.2 Special measures: a panacea for vulnerable witnesses? 87
5.3 Other protections for witnesses in fear 101
5.4 Vulnerable witnesses in civil cases 107
5.5 Key learning points 110
5.6 Practice questions 110
5.7 Suggested further reading 110
6 Witnesses III: Examination and Cross-Examination 112
6.1 Examination-in-chief 113
6.2 Principles of cross-examination 122
6.3 Key learning points 147
6.4 Practice questions 148
6.5 Suggested further reading 149
7 The Privilege against Self-Incrimination 150
7.1 The ‘even terms’ rule 152
7.2 The judicial direction 153
7.3 The right to silence 154
7.4 Section 35: the effect of not giving evidence 164
7.5 Section 36 and section 37 167
7.6 The privilege against self-incrimination in civil proceedings 169
7.7 Concluding comment 169
7.8 Key learning points 170
7.9 Practice questions 170
7.10 Suggested further reading 171
8 Confession Evidence 172
8.1 What constitutes a confession? 174
8.2 The principle of exclusion 176
8.3 Criteria for admissibility 180
8.4 Key learning points 207
8.5 Practice questions 208
8.6 Suggested further reading 209
9 Improperly Obtained Evidence 210
9.1 Exclusion at common law (criminal cases) 213
9.2 Exclusion under PACE 214
9.3 Exclusion of evidence in civil cases 231
9.4 Key learning points 232
9.5 Practice questions 232
9.6 Suggested further reading 233
10 Suspect Evidence: Corroboration and Identifi cation 234
10.1 Corroboration 235
10.2 Identifi cation evidence 239
CONTENTS | vii
10.3 Key learning points 244
10.4 Practice questions 244
10.5 Suggested further reading 245
11 Character Evidence 246
11.1 The rationale for exclusion 247
11.2 The evolution of the law 249
11.3 What constitutes ‘bad character’? 254
11.4 Conditions for admissibility 258
11.5 Collusion and contamination 278
11.6 The bad character of non-defendant witnesses 281
11.7 The defendant’s good character 284
11.8 Character evidence in civil cases 286
11.9 Key learning points 287
11.10 Practice questions 288
11.11 Suggested further reading 289
12 Hearsay Evidence 290
12.1 Evolution of the modern law 291
12.2 The erosion of the rule 296
12.3 The Criminal Justice Act 2003 300
12.4 Hearsay and human rights 329
12.5 Key learning points 332
12.6 Practice questions 333
12.7 Suggested further reading 334
13 Opinion Evidence 335
13.1 Non-expert witnesses 337
13.2 Expert evidence 340
13.3 Contesting expert evidence 350
13.4 Key learning points 355
13.5 Practice questions 355
13.6 Suggested further reading 356
Index 357

Preface
This is the third edition of our textbook, and readers of the previous editions will notice that the
title has changed from Criminal Evidence in Context to simply Evidence in Context . The new title refl ects the
wider scope of the latest edition, which has been considerably expanded to take account of devel-
opments in the civil law of evidence alongside criminal evidence. A number of other signifi cant
changes have been made. We have included two new chapters, on the adversarial trial (Chapter 2)
and suspect evidence (Chapter 10). In addition, we have sought to improve on the pedagogical
features of the book, incorporating example scenarios within each chapter as well as a number of
fl ow charts, tables and other diagrams where we have felt these would be of assistance to students.
Legal updates and further comments will be made available on a regular basis on the Routledge
companion website.
We hope that this latest edition will result in a textbook that both students and lecturers fi nd
accessible and stimulating. As opposed to taking a broad doctrinal sweep of the law of evidence,
we have sought to concentrate on those topics that tend to feature commonly on Evidence courses
and, in doing so, to take a contextual approach in an effort to rouse the interests of students.
Unfortunately, the law of evidence does not readily lend itself to the integration of a contextual
perspective, but we have tried, where possible, to discuss how wider policy debates and societal
trends have impacted upon the recent evolution of the law. In addition, we have also sought to
highlight the gap between the ‘law of the books’ and ‘law in practice’, which do not always sit
comfortably together in precise harmony. In addition to exploring the practical signifi cance of
evidential rules, we have also endeavoured to make reference – where appropriate – to examples of
the law in action from outside the law reports, drawing on consonant press and media reports, as
well as socio-legal studies.
The law of evidence remains a fast-moving fi eld. Since the publication of the previous edition,
we have seen a signifi cant body of new case law on the Criminal Justice Act 2003. Recent decisions
considered in the text include R v Olu, Wilson and Brooks [2010] EWCA Crim 2975; R v Mullings [2010]
EWCA Crim 2820 (character evidence); Al-Khawaja and Tahery v UK [2009] ECHR 26766/05; R v
Horncastle and others [2009] 4 All ER 183; R v Twist [2011] 2 Cr App R 17 (hearsay); and R v Barker
[2011] Crim LR 233 (competency to testify).
It was always going to be unlikely, however, that the Act would change the essential character
of the law of evidence as a disparate and unwieldy set of rules, which are not built around any
single set of values or rationales. These rules continue to be developed in a largely disordered and
haphazard manner, and it is not surprising that students studying the law of evidence often fi nd it
diffi cult to identify any sense of coherency within the subject. We hope that this textbook goes
some way to relieving these diffi culties; we have sought to balance the need for a clear and
accessible account with a suffi cient degree of analysis and context, which should cover all the main
topics covered by most undergraduate courses.
We wish to express our sincere gratitude to Fiona Kinnear, Damian Mitchell and the rest
of their team at Routledge for overseeing the preparation and production of this text. We are
also extremely grateful for the constructive and detailed feedback we received from the fi ve
reviewers who evaluated draft chapters in the course of writing and to Mark George QC for his
comments.